Oun v Brimelow

[2006] NSWSC 1115

CITATION:	Oun v Brimelow [2006] NSWSC 1115
HEARING DATE(S):	23/10/06
JUDGMENT DATE :	23 October 2006
JURISDICTION:	Equity Division
JUDGMENT OF:	Associate Justice Macready at 1
EX TEMPORE JUDGMENT DATE:	10/23/2006
DECISION:	Paragraph 15
CATCHWORDS:	Family Provision claim by a widow. Awarded the whole of the estate. No matter of principle.
PARTIES:	Maud Tuune Oun v Kaarin Brimelow & Ors
FILE NUMBER(S):	SC 4993/05
COUNSEL:	Mr G McNally for plaintiff Mr L Ellison SC for defendant
SOLICITORS:	Teece Hodgson & Ward for plaintiff Maclarens Lawyers for defendants

- 1 -

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

MONDAY 23 OCTOBER 2006

4993/05 MAUDE TUUNE OUN v KAARIN BRIMELOW & ANOR

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the late Bernhard Oun who died on 28 March 2004. The deceased was survived by his widow, the plaintiff, his two daughters and four grandchildren.

The last will of the deceased

2 The deceased made his last will on 5 February 2004 and under that will he appointed his two daughters as executrixes and left the whole of his estate equally amongst his grandchildren. He made no provision for his wife, the plaintiff. In clause 4 he explained this by making reference to the fact that he considered that his wife had committed numerous infidelities and that, therefore, she had no claim to be considered in his will.

The estate of the testator

3 The estate mainly comprises the matrimonial home, which is at 254 Excelsior Street, Guildford, which was valued at $430,000 for probate. There is also a deposit the deceased had with the Commonwealth Bank of $8,839. The property is presently on the market for sale at a sale price, presumably on advice, of $449,950. The net proceeds which are likely to be received and the costs that have to be taken into account in both the plaintiff’s and defendant’s cases mean it is likely that the amount which will be received, if it is sold for this figure, after allowance of cost, will be between $364,000 and $384,000.

Family history

4 The plaintiff was born in Estonia in 1926 and is now 80 years of age. She met the deceased in 1947. At that time the plaintiff was 21 and the deceased was 28 years of age. They came to Australia under an international refugee programme in 1948 and they marry in 1949. Thereafter the plaintiff worked in various process working jobs in different factories. In 1952 they moved into the property which was put into the deceased's name. In 1956 the deceased purchased a cement truck business that failed and the parties survived upon the earnings of the plaintiff. At that time the deceased was injured in a motor vehicle accident and he was looked after and nursed by the plaintiff for some three months. The first child was born in 1956 and the second in 1962. In 1955 the plaintiff worked as a housekeeper and subsequently in other factories from time to time. In 1976 the plaintiff stopped work and the deceased himself retired from the railways in 1984. At that stage he was 65. Some years after this it is apparent that the deceased behaved in a strange manner and he commenced seeing a psychiatrist. He seemed to have delusions about the plaintiff having sexual relations with other people, and at the same time plaintiff’s and the deceased's sexual relations ceased. These delusions continued for the rest of the deceased's life and by 1996 the plaintiff and the deceased were living in separate rooms but continued to live in the same house together.

5 There have been tendered before me medical records in respect of the deceased. It is plainly apparent from the medical records that the psychiatric evidence indicated that these paranoid beliefs were held by the deceased. The plaintiff herself has sworn that they were quite untrue and she has been a faithful wife and there is not one skerrick of evidence to suggest that the infidelities that the deceased accused his wife of were true.

6 In 2001 the plaintiff had a motor vehicle accident and had fractured her right hand and damaged her back. She appears to be able to walk at the moment quite well. She, during the last three years of the deceased life, acted as his carer and received a carer's pension and in January 2004 the deceased was diagnosed with cancer. He died, as I have mentioned, on 28 March 2004. Probate was granted and the application commenced within time.

7 The plaintiff has paid a holding deposit of $600 to purchase a retirement unit at Old Toongabbie, which is a cost of $365,000. It is likely that this might be available in March or April 2007.

8 In applications under the Family Provision Act the High Court in Singer v Berghouse (1984) 181 CLR 201 has set out the two stage approach that a Court must take. At page 209 it said the following:-

“The first question is, was the provision (if any) made for the applicant inadequate for (his or her) proper maintenance, education and advancement in life? The difference between ‘adequate’ and ‘proper’ and the interrelationship which exists between ‘adequate provision’ and ‘proper maintenance’ etc were explained in Bosch v Perpetual Trustee Co Limited . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.
The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there we no assets from which an order could reasonably be made and making an order could disturb the testator’s arrangements to pay creditors”.

9 Plainly the plaintiff is an eligible person. The circumstances are that she is a pensioner who receives a fortnightly pension of $457 plus the surviving spouse pension from the Department of Railways of $52 93 per fortnight. Apart from personalty her savings total $72,643 of which about $54,000 is a balance of funds which she received from a motor vehicle accidents claim. Her present outgoings are about $13,000 which is largely in excess of her income from the pension.

10 It is necessary in considering the matter to also look at the circumstances of others having a claim on the bounty of the deceased. In this case there are no claims by two daughters who are the defendants in the proceedings. They have, however, sworn some affidavits dealing with the grandchildren. In respect of Kaarin Brimelow she gives evidence that her daughter is 14 years old and another daughter is 10 years old. They both apparently live at home with her and her husband. They do not have part time jobs. Her husband is in full time employment and she also works part-time. They are currently schooled at the local state school, or one of them is at the state school and the other is at William Clarke College. Apparently their parents are able to meet those expenses. The children themselves have small investments of a sum each of slightly in excess of $2000. There is no other information about the children and presumably they are able to be cared for by their parents and grow up in the usual way.

11 Graham Greenfield has also sworn an affidavit and he is separated from his wife and the two children, Elizabeth and Rachael, live with him. They were twins born in September 1985 and are now 20. They have some mild intellectual disability and both of them have received disability support pensions. They also are in some part-time work at various bodies. Apart from this Mr Greenfield does not give any indication of his financial circumstances and presumably he is able to maintain and look after the children.

12 It is necessary to consider what is appropriate provision. It is plain that the plaintiff has had a long relationship with the deceased. In Luciano v Rosemblum [1985] 2 NSWLR 65 at 69 Powell J said this in respect of an application by a widow:

"It seems to me that as a broad general rule, and in the absence of special circumstances, the duty of a testator to his widow is, to the extent to which his assets permit him to do so, to ensure that she is secure in her home, to ensure that she has an income sufficient to permit her to live in a style to which she is accustomed, and to provide her with the funds to enable her to meet any unforeseen contingencies."

13 This is one of the cases that clearly fits that description. It was a marriage of some 50 plus years. The plaintiff has worked and cared for the deceased notwithstanding what must have been hurtful and difficult matters arising from the deceased's paranoia. She helped bring up their children and worked through most of the marriage and thus contributed no doubt to the assets in the estate. The only matter of difficulty in this case is the fact that two of the grandchildren have a mild disability. If there was any difficulty in them being looked after one would have expected that evidence would be put forward. It is not and I assume their father is able to look after them. It was suggested that perhaps it would be appropriate for there to be a Crisp order and, therefore, to preserve the entitlement or something for the grandchildren. In the circumstances the question would arise as to what should in fact be preserved for the grandchildren in respect of the intellectual disability. There is nothing that is quantified in that respect in the evidence. However, the deceased's house is not yet sold and once it is there will be virtually hardly any funds left over, apart from an amount which is needed if the deceased was to move into a retirement village. Plainly she should and because she has got to the stage where she needs to live in a retirement village in a case such as this I think, given it is still some months off before she can move in, I think she ought to have control over the whole of the capital and I do not think it is appropriate there be a Crisp order. She needs some funds for contingencies and she is fortunate that she has those already. If the house realises less it may be she will have to use those in obtaining the property.

14 Accordingly, it seems to me the whole estate should pass to the plaintiff.

15 The orders that I make are as follows:

(1) That in lieu of the provisions of the will of the deceased in clause 3 of the deceased's will I order that the whole of the estate be held by the executrixes for the plaintiff absolutely.
(2) I order that the plaintiff's costs on a party and party basis and the defendant's costs on an indemnity basis be paid or retained out of the estate of the deceased.
(3) The exhibits can be returned.

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